Claims Under the Inheritance Act 1975

Claims under the Inheritance (Provision for Family & Dependants) Act 1975

Life can be full of surprises - not all good. Loss of a loved one, particularly when unexpected, is always hard and grief can be compounded by worry and stress if you were financially dependant on the deceased to any degree and have been left nothing in their Will or otherwise. This Act (“The Inheritance Act”) enables certain categories of people to apply to the Court to make a claim against a deceased person’s estate if they do not consider that the deceased made reasonable financial provision for them.

Claims can be made whether the deceased left a Will or died intestate (ie without a valid Will) where their estate is otherwise distributed in line with the intestacy rules. https://www.gov.uk/inherits-someone-dies-without-will

Who can claim?

The Inheritance Act sets out the categories of people who are allowed to apply which include:

·      The spouse or civil partner of the deceased.

·      The former spouse or civil partner of the deceased - just so long as they have not remarried or entered into a civil partnership or agreed not to make a claim as part of the divorce settlement.

·      A person who for at least two years prior to the death was living with the deceased as their spouse or civil partner.

·      A child of the deceased.

·      A person who was treated as a child of the deceased by them.

·      Any other person who was being “maintained” by the deceased prior to their death.

So, for example, a grandchild or a godchild who regularly received gifts given by the deceased could apply, as could someone who had been allowed to live rent-free in a property belonging to the deceased.

Can I start a claim without a solicitor acting?

Yes, you can but you would be well advised to take legal advice before embarking on the process not least because there are various protocols setting out what should be done prior to the issue of any proceedings which should always be a last resort and cost penalties can follow if you don’t follow the protocols. You should start by contacting the executors or administrators of the estate and explain the basis of your claim and see whether an agreed settlement looks possible.

If not, you must start a Court claim within six months of a Grant of Probate or grant of Letters of Administration being issued. The Court has discretion to permit claims which are brought after this time but only in exceptional circumstances where for example someone may have been too unwell to commence proceedings or were unaware of their ability to make a claim.

What the Court will consider

The Court will consider the answers to the following three questions:

·      Does the Will or intestacy make reasonable financial provision for you or your child?

·      If not, should they intervene so as to award more financial provision from the estate?

·      If so, what provision is reasonable and appropriate?

What is "reasonable financial provision"?

The question of what is reasonable depends on which category of person you are. If you are a spouse or civil partner of the deceased there is no requirement that “reasonable financial provision” is limited to your maintenance. It is reasonable financial provision in all the circumstances.

If you are not a spouse or civil partner of the deceased but one of the other types of applicant the question is whether you have received “reasonable provision” for your maintenance. In deciding whether reasonable financial provision has been made (to be assessed objectively) the Court will take account all relevant circumstances and specifically the following factors set out in the Inheritance Act:

·      Your current and future financial resources and needs together with those of the beneficiaries of the estate.

·      Any obligations and responsibilities which the deceased had towards you and the beneficiaries.

·      The size and nature of the deceased’s estate.

·      Any physical or mental disability that you may have or other beneficiaries have.

The Court may also consider any other matter that they deem relevant such as conduct (whether good or bad.)

If you are a spouse or civil partner of the deceased the Court will also consider what you would have been likely to have received on divorce rather than death so taking into account the age of the deceased, the length of your marriage/civil partnership and contribution to the welfare of the deceased’s home and family.

Do Inheritance Act claims settle?

This is a difficult question to answer because only reported cases (ie those that get to Court) are generally known. There are however almost no reported cases involving applications for infant children of the deceased which suggests that almost all of these settle – usually because no financial provision has been made as the death was unexpected and the family would rather the money went to the children than in legal fees.

Mediation is an excellent way to try and encourage settlement and/or narrow issues in any dispute involving an Inheritance Act claim which, by their nature, have family dynamics also to consider and relationships moving forward.

An out of Court settlement also has the advantage of possibly including provision that a Court would not necessarily be able to order but which may be important to you such as the gift of a particular item of sentimental value belonging to the estate. 

What can the Court order?

A court can award that a specific sum be paid to you for a particular purpose or general use. Or if more appropriate they can order that a certain sum be paid regularly to you in the form of periodic payments for your maintenance.

If the argument involves a specific property the Court can order that it be sold and the proceeds split or that it be transferred to one person outright or held on trust for you and/or other beneficiaries.

Summary

Inheritance Act claims are a difficult area of law as there are many considerations to take into account when assessing whether you may have a good claim or not and expert legal advice should be sought.

***** STOP PRESS *****

In my earlier article regarding corona virus and contested probates I confirmed that the government was considering how to facilitate Will making during the pandemic. The Ministry of Justice announced at the end of July that a statutory instrument allowing Wills to be witnessed remotely in England and Wales will be laid in September. The new rules – which will be backdated to 31 January 2020 – will allow testators’ signatures to be witnessed using video conferencing software such as Zoom, Facetime and Skype. Clearly about the changes being rushed through without proper consideration of the potential impact on vulnerable individuals including the risk of undue influence but we will have to wait until next month to see the rules.

If contested probates or applications under the Inheritance Act are relevant to you or someone you know I would be delighted to help. You can contact me on [email protected] or call 020 3319 3700.

This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.